Commonwealth, Department of Transportation v. J. W. Bishop & Co.

Dissenting Opinion by

Judge Mencer:

I respectfully dissent.

The Department of Transportation (PennDOT) has instituted trespass actions against George H. Overmoyer and J. W. Bishop & Company, Inc. (defendants), seeking recovery of damages to bridges, allegedly caused when defendants’ overweight vehicles *385crossed the bridges, causing them to collapse. Presently before this Court are defendants’ motion for summary judgment and motion for judgment on the pleadings. Both motions contend that PennDOT’s claims are barred by the applicable statute of limitations.

The relevant statute of limitations for trespass actions is six years. Section 1 of the Act of March 27, 1713,1 Sm.L. 76, formerly 12 P.S. §31.1 PennDOT does not dispute that it did not file its actions within the six-year period2 but argues that it is not subject to the statute of limitations provision. I would agree.

The doctrine of milium tempus occurrit regi (nullum tempus)3 has long exempted the Commonwealth from technical compliance with a statute of limitations. United States v. Summerlin, 310 U.S. 414 (1940); United States v. Nashville, Chattanooga & St. Louis Railway, 118 U.S. 120 (1886); Commonwealth v. Musser Forests, Inc., 394 Pa. 205, 146 A.2d 714 (1958); Frey’s Estate, 342 Pa. 351, 21 A.2d 23 (1941); General State Authority v. George M. Ewing Co., 29 Pa. Commonwealth Ct. 523, 371 A.2d 1044 (1977); General State Authority v. Kline, 29 Pa. Commonwealth Ct. 232, 370 A.2d 402 (1977); Torch v. Constantino, 227 Pa. Superior Ct. 427, 323 A.2d 278 (1974). The doctrine “ ‘has been adopted in our jurisprudence as a matter of important public policy.’ ” Commonwealth v. Musser Forests, Inc., supra, 394 Pa. at 218, 146 A.2d at 720 (quoting Frey’s Estate, supra, 342 Pa. at 353, *38621 A.2d at 24). The policy reasons have been summarized as follows:

(1) The rule is founded on the principle of public policy, that the property and rights vested in the government for the benefit of the whole community should not be dependent on the negligence or bad faith of the agents or officers to whom the conduct of public business must necessarily be intrusted.
(2) The sovereign’s time and attention are occupied by the cares of government and it must not be held negligent in its delay.
(3) It is presumed that the state will not bring unjust or oppressive actions purposely delayed.

53 C.J.S. Limitations of Actions §15 n. 48 (1948) (citations omitted). See also Guaranty Trust Co. of New York v. United States, 304 U.S. 126 (1938).

Defendants admit the foregoing but ask us to reexamine the nullum tempus doctrine in light of our Supreme Court’s recent decision of Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978). In Mayle, the Court abrogated sovereign immunity on the grounds that, (1) under the sovereign immunity doctrine, plaintiff’s opportunity for justice depends, irrationally, upon the identity or status of the wrongdoer and (2) abolition of the sovereign immunity doctrine may make the government more efficient and diligent in the administration of its affairs. Applying this reasoning to the instant case, defendants here argue that the nullum tempus doctrine should be abolished since (1) the nullum tempus doctrine establishes an irrational status-based immunity in favor of the Commonwealth and (2) the nullum tempus doctrine defeats the purpose of a statute of limitations, which is designed to force a litigant to pursue his rights diligently.

*387The purpose and effect of the status-based immunity for the sovereign, as well as the other status-based immunities which were rejected by our Supreme Court4 are markedly dissimilar from those embodied in the nullum tempus doctrine. Sovereign immunity protects the alleged wrongdoer, the state, in all actions by private plaintiffs. Under sovereign immunity, thé state, as defendant, automatically proscribes a plaintiff from seeking remedy for a wrong done to him by the state. In contrast, the nullum tempus doctrine is utilized by the state, as plaintiff, to seek indemnification for damages inflicted upon the state by a private wrongdoer. Abolition of the nullum tempus doctrine would, in the instant case, operate to shield the private wrongdoer from the consequences of his wrongs, a result exactly opposite to that achieved by the abolition of the sovereign immunity doctrine. In this context, then, I believe that the right of the private wrongdoer to be protected by a statute of limitations is outweighed by the right of the public to recover from the wrongdoer.5

Even if one were to accept defendants’ argument that the policy justifying the sovereign immunity doctrine is the same as that supporting the nullum tempus doctrine, nevertheless I would still be constrained to uphold the milium tempus doctrine. Mayle is not the latest, and certainly not the final, word on sovereign *388immunity. Subsequent to Mayle, the legislature, in Section 5110 of the Judicial Code, 42 Pa. C. S. §5110, reestablished sovereign immunity except for eight limited instances. By reaffirming the validity of the sovereign immunity doctrine, the legislature has necessarily placed its imprimatur on the policy underlying that doctrine. Thus, the post -Mayle environment is not antithetical to the policies which sustain the sovereign immunity doctrine. Pennsylvania has not yet determined that “the king is dead.” See Department of Transportation v. Bethlehem Steel Corp., 486 Pa. 186, 194, 404 A.2d 692, 697 (1979) (Manderino, J., dissenting).

I would also note that, in construing a statute of limitations, we must be mindful of the “established principle of statutory construction that an act does not deprive the Commonwealth of any prerogative, right or property, as would a statute of limitations, unless the Commonwealth is specifically named therein or unless an intention to include the Commonwealth is necessarily implied.” Keifer Appeal, 430 Pa. 491, 495, 243 A.2d 336, 339 (1968). See also Interstate Cemetery Co. Appeal, 422 Pa. 594, 222 A.2d 906 (1966). The legislature is presumed to know the prior law on the subject, Raymond v. Scranton School District, 186 Pa. Superior Ct. 352, 142 A.2d 749 (1958), and failure to include the Commonwealth within the statute of limitations provisions indicates the legislative intent to exclude the Commonwealth from the operation of those provisions.6

*389It is the function of the legislature and not this Court to examine a statute of limitations in the light of experience to determine whether it works an unwarranted hardship upon defendants and, if so, to correct the law accordingly. Gawlick v. Glen Alden Coal Co., 178 Pa. Superior Ct. 149, 113 A.2d 346 (1955). Cf. Freezer Storage, Inc. v. Armstrong Cork Co., 234 Pa. Superior Ct. 441, 450, 341 A.2d 184, 188 (1975), aff’d, 476 Pa. 270, 382 A.2d 715 (1978) (“‘[i]t has always been considered a proper function of legislatures to limit the availability of causes of action by the use of statutes of limitations’ ”).

Therefore, my reexamination of the nullum tempus doctrine, in light of Mayle, has not convinced me that the doctrine should be abandoned. I believe that the doctrine maintains its vitality in present times and that it stands independent of, and is unaffected by, the changes in the sovereign immunity doctrine. Finally, I believe that the legislature is the proper forum for implementing the action urged by defendants.

Repealed by Section 2(a) of the Act of April 28, 1978, P.L. 202, 42 P.S. §20002(a) [9]. A similar provision is now found in the Judicial Code, 42 Pa. O. S. §5527.

PennDOT brought its action against J. W. Bishop & Co., Inc., 6 years, 11 months after the incident giving rise to the cause of action, and against Overmoyer 8 years, 4 months after the incident givingl rise to the cause of action.

Literally, “Time does not run against the king.” Black’s Law Dictionary 1217 (rev. 4th ed. 1968).

See Ayala v. Phila. Bd. of Pub. Educ., 453 Pa. 584, 305 A.2d 877 (1973) (abolition of local government immunity); Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971) (abolition of parental immunity); Flagiello v. Pa. Hospital, 417 Pa. 486, 208 A.2d 193 (1965) (abolition of immunity for charities).

The harshness of this doctrine is somewhat tempered in Pennsylvania, since defendants may raise the defense of laches against the Commonwealth if the Commonwealth proceeds in equity. Stahl v. First Pa. Banking & Trust Co., 411 Pa. 121, 191 A.2d 386 (1963); Comm. ex rel. Att’y Gen. v. Bala & Bryn Mawr Turnpike Co., 153 Pa. 47, 25 A. 1105 (1893).

*388Here, however, defendants are precluded from raising laches since the Commonwealth has filed a trespass action. Hoffner v. James D. Morrissey, Inc., 36 Pa. Commonwealth Ct. 513, 389 A.2d 702 (1978). Cf. Gen. State Auth. v. Kline, supra (laches cannot be raised against the Commonwealth in an assumpsit action).

Defendants’ reliance on Pa. Turnpike Comm’n v. Atlantia Richfield Co. (ARCO), 482 Pa. 615, 394 A.2d 491 (1978), is misplaced. In *389ARCO, the Court determined that the Turnpike Commission was subject to the statute of limitations. ARGO is easily distinguished, however, since the Court also decided that the Commission was not an integral part of the sovereign. See also Specter v. Commonwealth, 462 Pa. 474, 493, 341 A.2d 481, 491 (1975) : “It is clear that the [Turnpike] Commission is not an integral part of the Commonwealth, and cannot share the attributes of sovereignty which inhere in the state.”

Moreover, the Court in ARCO specifically added: “We need not and do not decide whether the holding of Prey’s Estate is of continued vitality after Mayle v. Pa. Dept. of Highways, 479 Pa. 384, 388 A.2d 709 (1978).” ARCO, supra, 482 Pa. at 620 n. 2, 394 A.2d at 494 n. 2.